Judges seem split on SB 1070

Appeals Court poses tough questions to Arizona, feds

by Michael Kiefer - Nov. 2, 2010 12:00 AMThe Arizona Republic

SAN FRANCISCO - Judges have not yet decided whether a federal-court injunction stays in effect against parts of Arizona's controversial immigration law, but the law's champions are already predicting a U.S. Supreme Court fight.

A three-judge panel of the 9th U.S. Circuit Court of Appeals, which heard oral arguments Monday, seemed inclined to split the difference, refusing to hear arguments on two provisions and questioning two others.

"If it's a split decision, then I'll be happy with my side of the split," Gov. Jan Brewer said immediately after the hearing.

Later Monday, Brewer said in a prepared statement, "Although the judges asked challenging questions of both sides during this morning's hearing, we are hopeful that after carefully considering the arguments, the 9th Circuit will lift the stay and allow SB 1070 to be enforced. The health, welfare and safety of the citizens of Arizona are irreparably harmed every day the courts allow SB 1070 to be put on hold and the federal government refuses to enforce all immigration laws."

"We know this will survive," Pearce said. "This is the most overturned court in the nation. We'll win it in the Supreme Court."

Senate Bill 1070 was signed into law in April and immediately drew multiple lawsuits questioning its constitutionality. In July, hours before it was to go into effect, a federal judge in Phoenix issued a preliminary injunction against four sections of the law in response to a lawsuit brought by the U.S. Department of Justice.

Brewer appealed that injunction to the 9th Circuit.

After allowing each side 30 minutes for oral arguments Monday, the judges took the appeal under advisement. A decision could take weeks or months. Even if the judges disagree with U.S. District Judge Susan Bolton's injunction, they would have to show she abused her discretion before they could overturn her stay.

Whatever decision they make will bring further appeals, possibly to have the case considered by a larger appellate panel or by the U.S. Supreme Court. Ultimately, it will go back to Bolton's courtroom to hammer out details of the law's provisions and clean up the language that sent it to court in the first place.

As arguments got under way Monday, more than 300 people protested outside the federal courthouse and blocked traffic for about an hour. Most protesters appeared to be opposed to SB 1070.

About 150 people - including Brewer, Pearce and Republican Arizona attorney-general hopeful Tom Horne - gathered inside the courtroom. There were fewer people in the spectators gallery than on the other side of the rail, where the attorneys and their clients sit.

Monday's panel consisted of Judges John Noonan, who was appointed by President Ronald Reagan; Richard Paez, who was appointed by President Bill Clinton; and Carlos Bea, who was appointed by President George W. Bush.

They peppered the lawyers on both sides with testy, rapid-fire questions.

"Arizona tried to fix a problem that arises from a federal situation," John Bouma, Brewer's lawyer, said in his opening. "Crossing the border is like crossing the finish line."

As is common in appellate hearings, the judges cut him off after just a few sentences.

"We are only dealing with four provisions," Paez said impatiently, reminding Bouma that he was not presenting a case to a jury.

"Tell us how Judge Bolton was wrong," Paez said, referring to the U.S. District Court judge in Phoenix.

The judges were no gentler with Justice Department lawyer Edwin Kneedler, who presented the federal government's case against Arizona's law. At one point, Noonan nearly shouted, "I don't understand your argument," and told him not to "go down like a soldier" defending his points.

The judges seemed to have made up their minds on two points: They cut off discussion of a provision that forbids illegal immigrants from soliciting work because existing case law refuses to penalize workers, and they saw no need to talk about a provision requiring immigrants to show registration cards.

Bea facetiously asked Bouma how the state could enforce federal law. "For instance, if I don't pay my federal income tax, can the state of California make me?" the judge asked.

The appellate panel seemed not to have problems with police officers asking people about their immigration status, but it struggled with the notion implicit in Arizona's law that detainees could be held indefinitely while their immigration status was confirmed.

"What do they hold him for?" Paez repeatedly asked Bouma.

The judges also questioned how a law-enforcement officer could determine what constitutes a removable offense.

When Kneedler cautioned that a state-by-state patchwork of immigration law could cause an international incident, Bea stopped him and asked if there had been any incidents over laws already passed by New Jersey and Rhode Island.

One thing was clear from Monday's hearing: the complexity of the law.

"If you have three 9th Circuit judges struggling over what the language of the statute means, what does that say for a police officer on the street?" asked Dennis Burke, U.S. attorney for Arizona, who attended the hearing.